CoCo

Constitutional Code in the Realm of Culture

Thursday, March 31, 2005

IFPI Norway: PyMusique is Apple's Problem

Sæmund Fiskvik, the managing director of IFPI Norway has no problem with PyMusique, developed by his countryman Jon Lech Johansen. He underlines that PyMusique does not add Apple's proprietary DRM, which makes the music files unplayable on other MP3 players than the iPod. Fisvik says:

"To the degree that iTunes sells music based on proprietary barriers, this is not something that has happened with the recording industry's blessing and celebration. We are skeptical to this. This is a problem Apple has to solve." [...] "As far as I can see PyMusique does not violate the DRM system in iTunes, it only keeps the music away from the (iTunes) program."

Fisvik does not add that PyMusique probably violates some iTMS end user terms. Still, for a head of a recording industry organisation this comes close to an endorsement of an act of DRM circumvention, legally in Norway or not. What Fisvik is probably pointing to is the lack of compatibility of DRM, which will make it harder for consumers to accept DRMs as such, and thus harder to sell for the recording industry. In the meantime Apple keeps selling songs, even without blessings and little celebration parties. And even if Johansen, as just announced, ported PyMusique to C#, now called SharpMusique. Johansen asks for some Pepsi Cap codes or an iTMS gift certificate if you like it. Maybe this all is Norwegian humour at the expense of Apple.

Japan: High Court Upholds Conviction P2P Service

Today the High Court of Tokyo has upheld a lower court ruling that convicted MMO Japan Ltd for copyright infringement by providing the file-sharing service File Rogue. This is the first decision by the High Court convicting a P2P service for copyright violations. According to this short news article "the judge said that MMO could predict that the service would infringe on copyrights". It is unclear for now what this "predictability" means, since the decision is not yet available. As far as I can tell File Rogue had a centralized server structure a la Napster, which makes this Japanese decision stand in line with US Napster decision, rather than being a novum related to MGM v. Grokster. The lower court ruled on the following considerations (from an article on the judgment, PDF):

[T]he defendant's service provides its users with an opportunity to exchange MP3 files, which are reproductions of commercially available recordings (CDs). Therefore, as far as the exchange of MP3 files is concerned, the defendant's service, in effect, enables its users to freely send and receive MP3 files, which are reproductions of commercially available recordings (CDs).

[S]ince a user must download the defendant's client software and install the software on his or her PC, and further, is required to connect his or her computer to the defendant's server to actually use the service, receipt and transmission of electronic content files come under the control of the defendant MMO Japan Ltd..

MMO Japan Ltd was sued by the Recording Industry Association of Japan and the Japanese Society for Rights of Authors, Composers and Publishers, who will have to be paid 71 million yen in damages by MMO.

Broadcast Flag: Legal Standing Explained

The petitioners in the Broadcast Flag case (Public Knowledge, the EFF, the American Library Association) have published their brief to explain why their members would be hurt if the broadcast flag is implemented. That is, why they have legal standing before the court. (See related posts for background information)

Mr. STEARNS. Does the consumer have the right to make a single copy of a DVD and a CD for his own fair use, yes or no? Mr. LESSIG. Can I say "absolutely yes"? [...] Mr. VALENTI. No, he does not under the law.

The exchange that followed between Lessig and Valenti is pretty entertaining. The entertainment value is only increased now that MGM has apparently exchanged Valenti's No for a Yes during the MGM v. Grokster hearing. The passage from Armstrong's report:

[MGM] said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. But they've now conceded the contrary in open court, so if they actually win this case they'll be barred from challenging "ripping" in the future under the doctrine of judicial estoppel.

This concession was a focal point during the hearing on the DMCRA, which seeks to reaffirm fair use for consumers and (re)establish the Betamax standard that stood at the centre of yesterdays Supreme Court hearings. The DMCRA would give consumers a "right", taken from them by the DMCA, to circumvent copy protections in order to make a fair use. That ripping a complete CD or DVD was a fair use was contested by the entertainment industry, of which Valenti represented the movie studios. If there is indeed a judicial estoppel, this argumentation against the DMCRA fair use provision would be weakened. (The entertainment industry also questioned fair use and its enforcement as such during the DMCRA hearings, a strategy to take away the focus from the direct issues presented by the proposed legislation.)

This comes just a few weeks after the reintroduction of a new version of the DMCRA (March 9th). With all the noise surrounding MGM v. Grokster this is a bill to keep an eye on, not the least because it would affirm what was contested yesterday: the Betamax standard. If the US Supreme Court steers for Congressional regulation, than there already lays some legislative groundwork. The question is if this groundwork will come to a full bill: the DMCRA 2005. A big question, even if it was strengthened by MGM's concession.

Formalities Dictate Freelance Settlement

In the US a class-action lawsuit aimed at the payment of freelance writers for work collected in (online) databases without their approval has resulted in an agreement with publishers. From the press release:

Under the terms of the settlement, publishers [...] agreed to pay writers up to $1,500 for stories in which the writers had registered the copyright in accordance with timetables established in federal copyright law. Writers who failed to register their copyrights will receive up to $60 per article; the organizations believe that many such writers will have valid claims for hundreds of such articles.

The settlement has to be approved by the court that oversees the settlement. Will that court also oversee article 5(2) Berne Convention? This article prohibits national formalities to rule the enjoyment and exercise of (a writer's) copyright:

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.

Don't know what the procedure is (active/passive role of the court), but to divide fees for freelancers on the basis of formalities seems (legally) unjust.

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In the Netherlands there have been several court cases over the remuneration of freelancers. Columnist Max Pam gives an (opinionated) introduction to some of them in this old article. (Dutch)(Thanks Chris)ThruFurdlog

Cultural Jamming

Out on DVD, reviewed here, a '95 documentary about cultural jamming, featuring Negativland, 2 Live Crew, Barbie Liberators and other (un)usual suspects. The sleeve does it for me, even if the documentary would stink.

RIAA Subpoenas & Universities

An anonymous Princeton computer science professor (Who might that be?), gives his thoughts on how the RIAA might have infiltrated the private network i2hub to subsequently sent pre-subpoenas:

"There are 10,000 different PCs on the Princeton network," he said. "When there's that many people, it's hard to try to monitor and control access that closely."

The professor also mentioned the recent emergence of small companies offering to hack into private file-sharing servers for the RIAA.

"It's not clear if the record industry is buying their services. It wouldn't look good if they were because they would basically be purchasing viruses," he said.

Columbia University students are also part of the i2hub lawsuits, as this article notes. Apparently, in the fall the RIAA had asked access to Internet2, on which i2hub runs, but was turned down.

In related news, though not related to private university networks, the RIAA drops lawsuits against two Pennsylvania University students, because the university claims it is no longer able to match the submitted IP addresses with actual persons. Suspicions that the university tries to thwart RIAA enforcement are denied. The same article linked to above notes that Ohio University withheld a warning from coming lawsuits, only to take action after being served with a subpoena. One may question this action, as it is in the interests of students to know that the RIAA might come down on them. This might be something else if the university had a known policy of non-cooperation and would actually take the RIAA to court over providing the name and address information.

In The Netherlands the majority of ISPs have decided to forward warning letters of the Dutch anti-piracy organisation BREIN to their customers, while claiming that further cooperation (matching IP addresses to customers) is not a logical next step. Only XS4ALL has refused any cooperation. If this last provider will also be willing to go to court over providing actual contact information, as I expect, this will be justifiable. Otherwise customers are, like at Ohio University, left in the cold before the actual storm breaks.

For the record, the anonymous Princeton professor in the article is not me.

I'm not sure where people have gotten the idea that the RIAA had a presence on the Princeton network. Based on the articles I have seen, they could have been anywhere accessible via i2hub -- and there are hundreds of thousands of such machines all over the U.S.

Blogger Down, Up Again (?)

My Blogger account was unreachable for the past day(s) due to some internal server error. Prevented posting and reminds me to get my own server (account), despite the great service so far. If the silence continues, enjoy it, and you know where it comes from.

Tuesday, March 29, 2005

IFPI Settles with Russian Disc Plant

The International Federation of the Phonographic Industry (IFPI) has reached a settlement with a Russian optical disc plant that admitted to have produced counterfeit CDs in the past. The IFPI strives for "proper CD plant regulation", which would be one step if we may believe a Russian seller of pirated material, quoted here last week.

[T]he majority of illegally duplicated products on today's market are manufactured by the same plants that make perfectly licensed copies at "daytime". I know for sure that at least two of such plants are up and running in St. Petersburg. They kind of work "around the clock" putting out lots of stuff. So the quality of an illegal copy equals that of an licensed product since both are manufactured using the same equipment.

In the meantime Russian copyright is so "outdated" that it does not cover file-sharing, often erroneously also called piracy.

By the way, a Jot is this blog's version of the clip, the blink, or, in this blog's case, any brief linkage to interesting (emerging) stories. Links in the headline, this post being the one and only exception to the rule.

Freedom Tower Copyright Case

The Freedom Tower, which is to be placed at the former World Trade Center site in New York, is the subject of a copyright lawsuit. An architecture student claims his design for a skyscraper was copied by architect David Childs. The student will have to point out "substantial similarities" between his skyscraper and that of the Freedom Tower. Harvard's William Fisher explains:

"That will be what things will hinge on, whether this is a novel configuration or whether the common features are just stock. So I wouldn't venture how it's going to come out, but just on first glance the two buildings are unusually similar."

It is believed to be the first architectural copyright case that involves a skyscraper, and sadly the 9/11 site has the premiere.

RIAA Targets Princetonian Private File-Sharing Network

The RIAA has sent a set of pre-subpoenas for copyright infringement to several students from Princeton University. Nothing new, be it that the file-sharing and alledged copyright infringement happened on a private network: "The students targeted were apparently using a file-sharing program called i2hub, which runs off the private Internet2 network accessible only to 206 member colleges and affiliated institutions."

Earlier RIAA lawsuits were targeted at public file-sharing networks such as Grokster, but this latest action shows how the RIAA is infiltrating the "private" sphere to come down on illegal music sapping. The RIAA must have had access to the private network, for example through a local computer, though it is unclear how exactly. The more paranoid might start to imagine assisted enforcement by a Princeton mole, but there must be a logical technical explanation for RIAA's access. Would the RIAA also have to explain an unauthorized access issue in this case?

Politician Demands Propaganda Guide Pulled

A French depute of Paris has spoken out against the distribution of 450 000 copies of a guide called Music and Film: Adopt the Net Attitude in French schools. The guide, financed by the French government and private players like Vivendi Universal, pushes a vision of copyright law and file-sharing that can hardly be called objective, educational material (seethis earlier post). Now Martine Billard has condemned the government for financially supporting and pushing the one-sided message of the entertainment industry and giving access to schools nation-wide:

[T]he only legal point of view on file-sharing present in this guide is that of the music and film industry. The government thus let private companies express their interpretation of the law with public means, while these same companies are parties in civil lawsuits whose outcome is not yet known. [T]he contents of this guide have more resemblance to publicity for the online sale sites than to a teaching document that explains the young Net surfers their rights and their duties in a neutral way. The republican school is not a place of propaganda for multinationals, and it does not rest with the political powers to anticipate decisions of court in a guide distributed on a large scale in school establishments. Martine Billard asks the government to cancel the distribution of this guide. [translation and italics mine-RL]

The question here is not if children may be educated in copyright issues, but who provides this education. Are children provided with a balanced view, or are they the target of lobying groups on either side of the copyright debate. Sadly it's easier to equate file-sharing with theft than teach the subtleties of fair use and copyright exemptions. More sadly governments and teachers are willing to open up the class rooms to propaganda camouflaged by cool language and cartoon mascots. Ideology should not finds it way into public schools, (industrial) information idelogy included.

Monday, March 28, 2005

Reidenberg on Technology & Internet Jurisdiction

Joel Reidenberg, who wrote about the Lex Informatica before Lessig coined Code as a technological regulator, has released a new paper on internet jurisdiction at SSRN: Technology and Internet Jurisdiction. Reidenberg's papers are thoughtful and have a keen eye for the diversities between American and European free speech law, of which the Yahoo! case is an example he analyses in greater detail (again). I may not agree with him on all points, but read Reidenberg.

Here's the abstract:

The current technology of the Internet creates ambiguity for sovereign territory because network boundaries intersect and transcend national borders. In this environment, jurisdiction over activities on the Internet has become a battleground for the struggle to establish the rule of law in the Information Society. This essay argues first that the initial wave of cases seeking to deny jurisdiction, choice of law and enforcement to states where users and victims are located constitutes a type of 'denial of service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex, gambling and stolen music use technologically based arguments to deny the applicability of rules of law interdicting their behavior. The essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. Innovation creates this counter-intuitive effect because more sophisticated computing enlists the processing capabilities and power of users' computers. This interactivity gives the victim's state a greater nexus with offending acts and provides a direct relationship with the offender for purposes of personal jurisdiction and choice of law. Some of these same innovations also enable states to enforce their decisions electronically and consequently bypass the problems of foreign recognition and enforcement of judgments. Finally, the essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.

Friday, March 25, 2005

INDICARE Article Flow

The new INDICARE Monitor has come out. The articles have been online for some while and will soon be available in PDF. For now they can be read online at the INDICARE site.

From the editorial:

Apart from payments and DRMs, the current issue continues debate about DRM patents, requirements of the European Copyright Directive (EUCD), and adds a further comment on the first INDICARE State Of the Art Report - this time from the IT-industry side. We also introduce a newly emerging DRM topic, namely the use of DRM systems for computer games, and we present a straight forward economic analysis of DRM by two French researchers involved in the European IST project MediaNet.

Thursday, March 24, 2005

Sweden: First File-Sharing Prosecution

While the fallout over the raid on ISP Bahnhof by the Swedish anti-piracy organisation Antipiratbyrå lingers on, the first Swede is to be prosecuted for file-sharing. Apparently he made one movie available for uploading , and now faces a possible two years imprisonment. The prosecutor sees this as a vital test-case and notes that future prosecutions would be unlikely if the man would only receive a fine. This would partly be because the police cannot demand information about the computers of people engaged in file-sharing if there is only a financial penalty set for this act. The prosecutor notes:

As these cases do not involve criminals, but instead quite ordinary people who share their files, any prison sentence would certainly be suspended."

All this comes in the slipstream of the Bahnhof-Antipiratbyrå affair and on the eve of new copyright legislation that would outlaw downloading. While the Justice Minister has stated that people would not be prosecuted for (small) downloading under the new copyright provisions, like in Germany, the timing of this prosecution is certainly interesting. Is this an ex ante test of the coming legislation?

iP2iP: iPod-to-iPod

On the eve of the war, that is the Grokster battle, I mean the MGM v. Grokster case at the US Supreme Court (March 29th), to drop the rhetoric, the PEW Internet & American Life Project has released a survey on file-swapping [PDF]. Its (press release) title is indicative for its (suggestive) conclusion: Music and Video Downloading Moves Beyond P2P. The Beyond is what PEW calls the "privatized" sharing that is the swapping of files though email, instant messaging and especially MP3 players:

Digital audio players like the iPod that can store thousands of songs and other files are emerging as an alternative way to access media files and avoid some of the potential risks of peer-to-peer usage. Copying files from others' MP3 players can require elaborate workarounds depending on the type of player, the software used to rip the files, and whether or not the files are copy-protected. Still, despite these hurdles, 19% of current music and video downloaders say they have copied files from someone else's player; 15% report it as a current practice while 4% say they used to do it.

That those workarounds are hardly elaborate proves the (commercial) availability of several hacks that let you, for example, copy files from iPod-to-iTunes(-to-iPod). This despite Apple's attempts to limit this transfer by hiding the part of the iPod's directory structure where the music files are saved and updating the firmware. This is likely because of contractual obligations with the music industry. But no contract can compete with code.

The survey says that while more people are swapping iPod-to-iPod, about 10% of the internet users is a former downloader. The RIAA lawsuits are mentioned by 28% as the reason to leave P2P, with nuisances as pop-ups and viruses in second place with 15%. However, overall file-sharing has stayed at the same level. Most interesting for the Grokster case, though hardly influential, is that Americans are about 50-50 on the reponsibility of the owners and operators of P2P networks for copyright infringement. I wonder what percentage of these are iP2iP swappers, who may transfer "legitmily" bought songs, but at the core likely depend on P2P applications for the initial music supply. What is stating the obvious: file-sharing may go beyond P2P to iP2iP, but the last is mostly an extension of the first and not breaking new grounds.

Wednesday, March 23, 2005

Google Calls X Clone Black

Last week the French sued Google, now Google gets back at the French. As Google Blogoscoped reports Google has sent a cease and desist letter to a French clone of Google X, the Mac OS X interface of Google that was pulled within a day. The SearchEngineWatch forum has a translation of the French letter. So, Google orders the shut down of a site because of IP infringement, which is the clone of a site that was likely pulled by Google because of IP infringement? Nice twist...

PyMusique Coder: "The DRM means nothing to us"

An interview with one of the PyMusique coders, the 17 year old high shool student Codi Brocious, can be found at Neowin. Brocious claims that the project wasn't about the DRM, but about making iTunes available for Linux:

I believe that content owners/distributors have the right to apply DRM, just like people have the right to remove it. Personally, I don't mind the DRM being there as I’m an iPod user. If Apple put the DRM on server-side, we'd leave it there. We simply want to buy files. It wasn't a DRM issue until people started making it one. It's not about DRM in the least, really. [...] We just want to be able to purchase songs from iTMS on Linux. [bold in original - RL]

And to Apple:

We will work with you, if you let us. If they want us to apply DRM on the client in exchange for not breaking support for us constantly, we'll do it. (Not that people can't just go into the source and remove it)

Kinda sounds like blackmail...

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Later: Statement on the project by Brocious, who calls himself Lord Daeken M. BlackBlade

The Scene: Piracy Series Director Interview

NYU student Brian Sandro has a secret: he and his friends pirate hundreds of millions of dollars of illicit Hollywood movies in their spare time. They are revered, reviled, hunted and admired. No one knows who they are - at least, not as far as they know.

This is the pitch for The Scene, an online series about the fictional movie ripping group CPX, lead by Brian Sandro. Episodes can be viewed online and downloaded through BitTorrent and P2P clients, and are distributed under a Creative Commons license. Just watched some episodes and all you see is Sandro sitting behind his computer (great acting), while another screen displays the chat sessions with his crew members and an Asian "business partner" to which he leaks movies. A bit entertaining, and it offers some insight in the piracy trading, though I've got no idea how far this is accurate. Apparently 70% of the initial viewers of the series thought they were looking at some real action. Slyck now has an interview with writer/director Mitchell Reichgut, who is also founder of Jun Entertainment Group, the production company behind The Scene. He has some clear ideas about the role of file-sharing in future distribution of (television) entertainment and the (legal) developments that might threaten it, such as the broadcast flag:

If the only hope of saving costly productions is with the broadcast flag, then we're done with costly productions. Not one of the various DRM schemes ever proposed has worked for more than a few months, and the hardware to evade the broadcast flag already exists. Can the content industries or the FCC point to one *single* song or video that has been protected with DRM that hasn't been pirated? On the other hand, our vision of the future is that file sharing will become like TV - entertainment that's paid for by sponsors, not by recipients. In that world, you aren't ramming DRM or the broadcast flag down the throats of consumers who don't want it.

Swedish Anti-Piracy Organisation Planted Evidence?

An insightful email from Erik was hiding in the dark of my inbox, while the news got wired all over the world (and Slashdotted). (Note to self: get email client running, check email more regularly.) Here is what Erik wrote:

Concerning the bust at the Swedish ISP Bahnhof on March 10, 2005. Today IDG Sweden reported that Bahnhof has posted their findings as a PDF (swedish) of an internal inspection and that it seems as if the Anti-Piracy Bureau of Sweden and their infiltrator "Rouge" have had some severe involvement into supporting the busted FTP server not only with hardware but with so called "warez" as well. Theblog of Lars Backlund has a translated version of the interview conducted in the report of Bahnhof which is the most interesting part of the report...

Director Jon Karlung of Bahnhof, which has released the involved log files (zip) says about the infiltration and planting of evidence: "It's like handing out matches and petrol to a known pyromaniac and then reporting him to the police when he burns a house down."

As mentioned in news paper The Local (linked above): "if APB were found to have planted evidence then individuals there would be facing charges of incitement to commit a crime and of being an accessory to that crime."

This would be a true backslash for the anti-piracy organisation Antipiratbyrå (APB), which is currently also investigated by the Swedish Data Inspection Board and the National Post and Telecom Agency for breaking data protection laws.More to come...

Uuuullllllaaaaaaaaaa !!!

As a kid I listened for hours to Richard Burton's epic journey through Victorian England under the Martians in Jeff Wayne's musical version of H.G. Wells' War of the Worlds. Probably the best part was when Burton described the appearance of the first Martian in Horsell Common and the Heat Ray:

Two luminous disc-like eyes appeared above the rim. A huge, rounded bulk, larger than a bear, rose up slowly, glistening like wet leather. Its lipless mouth quivered and slavered and snake-like tentacles writhed as the clumsy body heaved and pulsated.

The album triggered my love for sci-fi, and a tech fascination as a likely spin-off. I never really cared for the first movie adaptation (1953), in which the Martian's tripods were replaced with space ships and 19th century England became the 1950's rural America. I may however go see Spielberg's upcoming version, which is where this small War of the Copyright Wars starts. Not an alien invasion, but a cinematic one has given rise to a bit of copyright row between Paramount and an obscure DVD distributor called AUV. Just before Paramount is set to release Spielberg's War of the World this summer AUV will release...War of the Worlds.

AUV's version is produced by Pendragon Pictures, and as a project initiated before that of Paramount's. Pendragon has been giving signs all along the production trail that the movie would get a theatrical release. Now it seems that it will go straight to DVD and be available in 60 000 outlets across the US. Paramount is not amused and fears that consumers will be confused and buy AUV's version, instead of its $130 million Tom Cruise-Spielberg production. AUV has done this kind of free-riding before with Disney animations and by making Russel Crowe a headliner on the DVD cover of Prisoner of the Sun, in which he had a very tiny role. This action comfortably coincided with the release of blockbuster Master & Commander.

Paramount has warned AUV not to release War of the Worlds in Europe and Asia or face a lawsuit over copyright infringement. While H.G. Wells' work is in the public domain in the US (death Wells in 1946 + 50 years=1996), Paramount has claims on the movie rights outside the US, negotiated thtrough contract with Wells' heirs in 1951. Pendragon Pictures has supposedly gotten a statement from Paramount acknowledging the right to make its version of the War of the Worlds, but this does not release AUV from copyright infringement claims if it distributes the movie outside the US. And it looks like Pendragon was aming all along at a US straight-to-DVD release, rather than theatrical showings. Different copyright terms from different copyright worlds may keep at least one War of the Worlds from raging on a global scale.

Tuesday, March 22, 2005

Johansen Strikes Back: Reverse Engineers iTMS

As quick as Apple was to close down its security hole in the iTunes Music Store to lock out the PyMusique interface, Jon Lech Johansen strikes back with even more lightening speed. Just in from his blog:

French Mascot Joins the Propaganda Club

This is the little mascot that guides the French kids through the rights and wrongs of the internet. Admittedly, it is less scary than the Dutch Pig and psychotic grinning BSA Weasel:

The campaign it pushes also looks more sensible than that of its Dutch and American counterparts. It focuses more on the creative possibilities of the internet, than relying on fear and intimidation to keep children from "illegal" uses (file-sharing). Concerning these last tactics I'd say that the top honors go to the Dutch campaign.

Still, the latest French initiative does not stay clear from putting a little shock into the schools. 450 000 copies of a brochure called Music and Film: Adopt the Net Attitude (French), an initiative of commercial entities and the government, has been distributed over 400 schools. Written in what's presumably youth slang, riddled with pictures and quotes from artists it comes with this kind of text on file-sharing:

The Code of the intellectual property envisages maximum punishments of up to a 300 000 euros fine and 3 years of prison. But to date the courts did not condemn anybody to these sentences. They fix fines, sometimes months of prison, according to the importance of the infringement, the personal situation of the counterfeiter, etc. For example, Bruno, who had already been condemned to have burned and audio CD's on the Internet, and who did it again, was condemned to 6 months of firm prison by the Court of Appeal of Paris. If you are condemned, that can be registered with your criminal record and certain doors are likely to be closed: administrative contests, occupations of auditor, lawyer, notary...

AFP v. Google Court Filings

For those interested in the $17.5 million dollar copyright infringement lawsuit of Agence France Press (AFP) against Google over Goolge News, the full text of AFP's court filings can now be found at the SEW Blog. AFP claims, amongst others: copyright infringement in AFP's photographs, headlines, story leads and the removal or alteration of copyright management information.

Monday, March 21, 2005

Ghana Bill Would Mandate Security Protection

The President of Ghana has stopped short from signing a copyright bill that was passed by parliament and would mandate security protection for CD's and DVD's. Clause 25 of the bill states:

A manufacturer, importer or publisher of sound or audio visual recording shall on the minister, purchase security device from the Internal Revenue Service as may be required to cover the number of copyright works the manufacturer, importer or publisher intends to sell or distribute.

A person who sells or exhibits for sale a copyright work without a security device obtained from the Internal Revenue Service affixed to its commits an offence and is liable on summary conviction to a fine of not less than 500 penalty units.

I don't know what 500 penalty units are, but it sounds scary to me. The so-called Coalition of Concerned Copyright Advocates (COCCA) expressed its concerns over the clause, which prompted the President to ask for further investigation. The COCCA noted that the clause is inconsistent with Ghana's Constitution and article 9(1) of the Berne convention, which states:

Authors of literary and artistic works protected by this convention shall have the exclusive right of authorizing the reproduction of their works in any manner or form.

Since security protections would be mandatory and would be limited to those proscribed by the Internal Revenue Service both the freedom not to protect works and to choose its own preferred protection would be harmed. So, no free dissemination of content, no creative licensing models. And while the analogy with the mandatory regime of the US broadcast flag is false, which leaves the freedom to choose for protection to the copyrightholder, there are striking similarities in the problems it may cause for innovation, effectiveness of the security regime and user's rights. But, that's not even the issue here: copyrightholders themselves would feel the wrath of badly crafted IP policy.

Apple Fixes PyMusique DRM-Free Interface

Last week Jon Lech Johansen announced to be working on an iTunes Music Store interface that lets users purchase DRM-free music: PyMusique. Today Apple already fixed this hack, making it necessary for some users to update their iTunes software if they want to continue to use the iTunes Music Store:

"The security hole in the iTunes Music Store which was recently exploited has been closed, and as a consequence the iTunes Music Store will now sell music only to customers using iTunes version 4.7."

One can still listen to previews of songs through PyMusqique, but purchasing them is no longer possible. It is unclear if Apple will take any legal steps against the PyMusique creators.

Russian DVD Piracy Interview

Selling pirated CDs and DVDs is probably the second most profitable business on the black market at the moment. Only the drug dealers make more money then we do. You can do your own math while I will give you a few facts and figures. The production costs are very low. A kilo of plastic costs $4. This quantity is enough for pressing 120 CDs. [...] Besides, the majority of illegally duplicated products on today"s market are manufactured by the same plants that make perfectly licensed copies at "daytime". I know for sure that at least two of such plants are up and running in St. Petersburg. They kind of work "around the clock" putting out lots of stuff. So the quality of an illegal copy equals that of an licensed product since both are manufactured using the same equipment.

On payoffs:

You can even get back two-thirds of your stuff that was confiscated if you pay [the authorities] an extra. Various police departments are supposed to combat the sale of pirated CDs and DVDs in Veliky Novgorod. Every time they would launch their "surprise" raids on the retail market, as a rule they do it once a year at the end of summer, we would be fully prepared to see them. A maximum fee for selling counterfeit products at retail is 4,000 rubles. My personal experience shows that the amount of fee can be subject to negotiation. Your punishment can be reduced to a warning if you are smart enough to offer some latest flick to an inspector you are dealing with.

Open Source Yoga

Some American Yoga teacher, who's set up a franchise of 1300 yoga schools worldwide, is claiming copyright on a sequence of yoga movements and is suing other yoga teachers for infringement. A group called the Open Source Yoga Unity has filed a counter-suit, to be decided this spring. Bizarre story with possible farreaching consequences, nicely set out in this Chicago Tribune article. What's next? Soccer clubs copyrighting a specific playing sequence with IP trained referees delivering swift decisions?

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Later: More (previous posts) at boingboing, which has this quote from the Yoga teacher: "Because I have balls like atom bombs, two of them, 100 megatons each. Nobody fucks with me." Some enlighted spirit...

Filtering in the United Arab Emirates

A bit late with this one, but the Open Net Initiative released a study last week on filtering in the United Arab emirates [PDF, HTML]. The country uses an American filtering software (SmartFilter) that leads to considerable overblocking.

Here's the small abstract of the study:

The United Arab Emirates filters Internet content extensively, with blocking targeted particularly on material viewed as culturally insensitive or interpreted as offensive to Islam. By contrast, political and news sources are generally accessible. Overall, while UAE filtered 15.4% of the 8713 Web sites that ONI tested, the state's regime suffers from overblocking, thus preventing its citizens from accessing a considerable amount of material unrelated to UAE's expressed goals.

Scientology Set for Defeat at Dutch Supreme Court

The Church of Scientology must have had a sour celebration of the birthday of their founder L. Ron Hubbard, last Friday. On that day the advice of the main legal counsel to the Dutch Supreme Court, the "Advocaat-Generaal" D.W.F. Verkade, was published, which reads as a preamble to a likely defeat of the Church in a court case over copyright and freedom of information. The case started ten years ago, when on 5 September 1995 the Church raide the ISP XS4ALL and confiscated computer equipment, because one of its customers had published the so-called Fishman Affidavit on its website. The Fishman Affidavit is a witness account from 1993 submitted to the library of the District Court for the Central District of California, where it was available for two years. It is a testimony of former member Fishman on the practices of the Church against opponents of the Church. The testimony contained copyrighted texts of Hubbard, which the Church demanded to be removed from the library, as was done. However, the document already circulated on the internet, and Dutch writer Karin Spaink published it on her (XS4ALL) website, leading to the aforementioned raid and a long winding court case in The Netherlands. In 2003 a Court of Appeals in The Hague recognized the copyright of Scientology, but found that Spaink's publication should be allowed on the basis of article 10 ECHR (freedom of speech). Especially since it has an informative, non-commercial character, and the Church of Scientology shows anti-democratic objectives. This decision has been appealed, and now the Dutch Supreme Court will give its decision on July 8, more than likely taking over the advice by D.W.F. Verkade. In his advice to the Dutch Supreme Court Verkade notes that under certain circumstances copyright, which also falls under 10 ECHR, has to yield for the freedom of information, protected by the same article. Verkade thinks that the Church cannot rely on its copyright, mainly basing his argument on article 15b of the Dutch Copyright Act (Full English Version):

The further communication to the public or reproduction of a literary, scientific or artistic work communicated to the public by or on behalf of the public authorities shall not be deemed an infringement of the copyright in such a work [...]

Verkade argues that the American Court is part of the public authorities mentioned in the article and that with the initial submission of the contested texts to the American Court's library, where it was available to the public, the Church can no longer prohibit the "further communication to the public or reproduction". That the texts were made available against the copyrightholders will and by a foreign public authority has no influence on the applicability of article 15b (compare pp. 31-38). Verkade also notes the important role of the internet, echoing some of the sentiments over journalism and blogging, currently fueled by the court case of Apple against bloggers in the United States:

To my opinion it does not need argumentation that the position of information providers on the internet is in many aspects comparable to that of the press. The press has its classically defined, but in the 20th century further evaluated and expanded contours. The 'press' is not a closed concept. The internet has given a further expansion to the possibilities for individuals and organisations to play a role (...) that was was factually limited to restricted groups before the internet era. (p. 44) [translation mine - RL]

Verkade also writes that hyperlinking should not be judged by copyright law, but by (secondary) liability laws as applied to ISPs (p. 68). This 80+ pages advice is very interesting, giving a broad analysis of the relation between copyright and the freedom of information, while shining some light on other important topics related to internet publication. At the expense of the repressive (mis)use of copyright by the Church of Scientology the Dutch Supreme Court will likely judge in favour of the freedom of information on the internet this summer.

Friday, March 18, 2005

FCC-Paper Kills Scarcity Doctrine

The so-called scarcity doctrine has for long been a central part of communication regulation in the US, specifically by the Federal Communications Commission (FCC). The doctrine. The rationale of this doctrine is that since the spectrum used to broadcast signals was scarce, the government (FCC) should have a role in allocating it through licensing. This doctrine has been criticized on technological, legal and economic grounds, but has always been part of the FCC's arsenal to regulate the airwaves and the speech that flows over it. Now the media bureau of the FCC has published a staff research paper that all but kills the scarcity doctrine: The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed by John W. Berresford [PDF].

The paper outlines what has argued for a long time: the scarcity doctrine cannot hold. If it ever was valid, this is undercut in today's media marketplace with the rise of new and improved technologies: e.g. "Perhaps most damaging to The Scarcity Rationale is the recent accessibility of all the content on the Internet, including eight million blogs, via unlicensed spectrum and WiFi and WiMax devices." (p. 11).

In Reno v. ACLU (1997), the landmark case on indecency regulation on the internet, the US Supreme Court made it already clear that the scarcity doctrine could not be projected on the new medium: "[T]he Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communications of all kinds". In the same case the Supreme Court also set aside the so-called pervasiveness doctrine for the internet. The pervasiveness doctrine has been increasingly used by the FCC to regulate indecency of broadcasting with the argument that certain media invade people's homes and may easily bring harmful content to children (compare FCC. v. Pacifica Foundation (1978)). As the Supreme Court noted in Reno v. ACLU:

"[T]he Internet is not as 'invasive' as radio or television [...], [...] communications over the Internet do not 'invade' and individual's home or appear on one's computer screen unbidden. Users seldom encounter content by 'accident'."

That was the Supreme Court in 1997 on both doctrines in relation to the internet. As the paper rightfully notes, new media, the internet included, may be as 'invasive' as the old. However, this does not bring ground for (more) regulation, and just as the scarcity doctrine the pervasiveness doctrine may be undercut by (technological) developments:

It may be on the contrary, that the spread of new media, with hundreds of new channels, should cause regulation of indecency in traditional broadcasting to end. If what is pervasive today is hundreds of channels and billions of web pages, no one channel, show, or page is as pervasive as the Big Networks' shows were in the heyday of their three-member oligopoly. Also, new technology [...] empower consumers who wish their homes to be free of indecent content while allowing others to access their content of their choosing free from government intervention and oversight. (p. 29)

The paper says what has been said before, but its source (the FCC) makes this noteworthy (though it is a nice paper on itself). The question is what an abolishment of the scarcity doctrine, and the pervasiveness doctrine for that matter, would mean for the (regulation of) media. Current attempts by the FCC and Congress to come down hard on indecency might be mellowed, when the "insight" of this paper becomes policy. I doubt this will happen anytime soon. As Jack Balkin notes in his Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society(2004), there may be another, less benign side to the recognition that scarcity can no longer be an argument for regulation: telecommunications companies increasingly argue that these regulations (such as must-carry and open access requirements, limitations on ownership and public interest obligations) violate their First Amendment rights. Balkin notes that this argumentation is based on a capitalistic theory of freedom of speech, which he calls "controversial not because it accepts capitalism as a basic economic ordering principle, but because it subordinates freedom of expression to the protection and defense of capital accumulation in the information economy." (p. 24)

In that sense this paper, and its publication by the FCC, might not be very surprising. Consider it an affirmation of the direction the FCC has been steering and (de)regulating to for a long time: pro-business freedom. Now it's waiting for a FCC-paper on how (over)privatization of the "public airwaves" can render public freedom scarce.

Copyright Censorship: Mein Kampf

Hitler's Mein Kampf apparently is a bestseller in Turkey at the moment, possibly fuelled by anti-American sentiments, as this LA Times article suggests. To many people this sudden interest is distressing, as is any interest in the work. Both access to and distribution of Mein Kampf have been prevented in the past, most notably by the German state of Bavaria. After WWII it acquired the copyright on the work and has been avid enforcer of it ever since. It has control, or so it claims, over all editions except the English and the Dutch. The Dutch government seized the rights over the Dutch translation, also after WWII. Since then any sale in The Netherlands of the book is prohibited. Copyright is used as a tool of censorship

The state of Bavaria legally challenges publications of Mein Kampf worldwide to prevent this anti-Semitic work to spread as Nazi propaganda. Only recently the state of Bavaria said to seek legal actions against a publication in Poland. Earlier this week a Czech was prevented from further publication on intellectual property grounds, after initially being cleared by the Supreme Court from a conviction based on the charge that his action supported a movement that aims to suppress human rights. In '98 another Supreme Court, the Swedish', dismissed an action by the state of Bavaria for lack of standing to exert its copyright.

These are all examples of legal enforcement against the distribution of physical copies. But how does this hold up on the internet? A Google search (mein kampf) brings you to a variety of sites that offer the text of the book online. Some have clearly anti-Semitic tendencies, others are retailers like Amazon, and the first hit is Google print. A Dutch version is found in seconds. It looks like a crystal-clear scan of the original translation the Dutch government tries to keep out of the hands of its citizens. When it comes to Mein Kampf the internet indeed treats the (copyright) censorship as damage and routes around it. Even if this censorship seeks to prevent damage in the first place. Long before Mein Kampf's copyright expires in 2016 the internet has disclosed it for better or worse.

Java...Open Source...Not

Declaration of Technology Independence

The US Consumer Electronics Association (CEA) has released a Declaration of Technology Independence, outlining six guidelines for Intellectual Property to ensure future innovation. From the Declaration (full text):

Recognize that founders instituted copyright law to promote creation, innovation and culture rather than to maximize copyright holders’ profits, and that it can do this only if new technologies are not stifled and fair use rights are upheld;

Reaffirm the Betamax holding that a product is legal if it has significant legal uses;

Resist pleas by big content aggregators for new laws, causes of action, liabilities and ways to discourage new product introductions;

Re-establish the fundamental rights of consumers to time-shift, place-shift and make backup copies of lawfully acquired content, and use that content on a platform of their choice;

Re-examine the length of the copyright term and explore avenues for content to be reliably available for creative endeavors, scholarship, education, history, documentaries and innovation benefiting society at large; and

Realize that our nation’s creativity arises from a remarkable citizenry whose individuality, passion, belief in the American dream and desire to improve should not be shackled by laws that restrict creativity.

The CEA, the trade organisation for the consumer elctronics industry, launched the declaration with some combative language by CEA President and CEO Gary Shapiro:

"We reassert our independence from the content community's stranglehold on determining the language of the debate. We reassert our independence to counter their efforts to inhibit the democratization of creativity enabled by digital technology. And we reassert our independence to ensure that legal activities conducted by consumers remain legal and are not inaccurately labeled as 'piracy.' The principles we present today are designed to protect the critical American values of innovation and creativity while preserving basic consumer rights."

The declaration, called the Declaration of Innovation Independence in the press release, clearly plays on the rising fear about the competitive position of the US in the global (technology) market. US technology companies have increasinglyexpressed that the (over) regulation in the US will restrict innovation, scare off researchers and that a lack of funding for education may have a very negative effect on the future of the US technology business. And who will be the winners of US's decline? Marginally Europe, but certainly China and India. Yes, the usual suspects, again.

Thursday, March 17, 2005

Chinese Bring Own Blu-Ray/HDVD: E-VD

While HDVD and Blu-Ray do battle over which one is going to be the heir to the current DVD format, China is working on its own version: E-VD. At this moment it is unclear if the E-VD will include DRMs, but as this lengthy post points out, the Chinese could care less. Without DRM the E-VD is likely to be limited to the domestic (Chinese) market, but it has some advantages over its Western counterparts to win over that market:

Working in the favor of the E-VD is its patent free status, making it more attractive to manufacturers, and the fact that it is backwards compatible with existing DVDs and VCDs. Allowing manufacturers to switch over to the new technology without interrupting sales and without having to wait for the high definition aspects of the E-VD to become more attractive to consumers before they begin producing E-VD players in significant volumes.

Some Chinese papers proclaim that the E-VD will allow Chinese manufactures to shake off their previous dependence on foreign technologies. While the video codec is produced by a US company, it is certainly interesting to see that the Chinese might create a future format that does not cater to US demands on piracy. This echoes observations that piracy can actually be a motor for Chinese development, now possibly with a high definition format to ride on.

MPAA Sues England Based BitTorrent Hub Owner

The MPAA has sued the England based owner of a BitTorrent hub, who says he's going to put up a fight. He realises that the LokiTorrent debacle has made people more than a little suspicious about such claims: "Loki kind of ruined it for people like me, but I am going to appeal for legal advice on the web site". He may need some, because the MPAA seems pretty confident about their trans-Atlantic lawsuit:

"Though you may currently be located in the United Kingdom, you will be subject to the jurisdiction of the United State federal court by virtue of your engaging in BitTorrent activities through a US Internet Service Provider, among other reasons."

It will be interesting to see how the MPAA will tackle the jurisdiction issue involved. Not just concerning the site, which was already shut down by the owner last December, but also towards the his actual (physical) prosecution. Since recently there is an Australian precedent on copyright infringement extradition, but it seems the MPAA will have a hard time to get their hands on the owner. And he will have a hard time traveling to the US, I imagine.

(Note that the story takes some disputed claims for granted, like: "P2P networks, which are generally considered legal".)

From Great Train to Internet Robbery

The BBC reports on how the police has foiled what is one of the biggest attempted bank robberies in Great Britain's history. No Great Train Robbery, but a Great Internet Robbery: to transfer 300 million euro ($423 million) electronically after hacking the Japanese bank Sumitomo Mitsui. Last October it was discovered that hackers had gained access to the bank's computer system, using keylogging software to get sensitive information such as passwords and account numbers. The British National Hi-Tech Crime Unit (NHTCU) prevented the plan to unroll, and one man was arrested. There are still little details on the story.

Copyright (Term) Hinders Film Preservation

A local film historian is trying to restore and preserve old films that where shot in Ithaca and get them out on a DVD to the public: "There's a number of things I want to get because I want people to see them to know what was done here". On his laborious work on Beatrice Fairfax (1916) and coming restorations another film restorer points out how the continuously extended US copyright term may hinder to preserve some of these old movies:

"I hope it works out because it's important to save these films if we can. A lot of them just get chucked, even nowadays, because of the money and copyright law being changed--copyright has been extended longer than the life of the nitrate film itself, which is ridiculous and means you can't touch something to save before it crumbles."

Also interesting, an '93 statement of The Committee for Film Preservation and Public Access touching on some other copyright tricks:

The copyright owners have shown every indication that once the 75-year copyright terms expire, they will prepare revised versions that qualify for new copyrights, and the originals will be withdrawn from circulation.Indeed, the Walt Disney Company has announced plans to permanently withdraw FANTASIA (1940) in favor of a new version, with some new footage. This new version will qualify for a new and separate copyright and the original version of FANTASIA will disappear and be forever unavailable, even after the original falls into the public domain.In short, as their oldest films complete their 75-year term of copyright protection, the studios have considerable incentive to create new versions. Public domain is not going to lead to the widespread availability of the great films. Instead, it will be the cause of the disappearance of these motion pictures in their original versions.

Wednesday, March 16, 2005

Code v.2: Collaborative Online Editing

The Code v.2 project has been launched. It is the collaborative online effort to update Lawrence Lessig's 1999 book Code and Other Laws of Cyberspace. You can contribute through a wiki and follow the progress at the CodeBlog. This is what the project has to say:

After five years in print and five years of changes in law, technology, and the context in which they reside, Code needs an update. But rather than do this alone, Professor Lessig is using this wiki to open the editing process to all, to draw upon the creativity and knowledge of the community. This is an online, collaborative book update; a first of its kind.

Once the the project nears completion, Professor Lessig will take the contents of this wiki and ready it for publication. The resulting book, Code v.2, will be published in late 2005 by Basic Books. All royalties, including the book advance, will be donated to Creative Commons.

- - -

Later: Here is the press release from JotSpot, the involved wiki company

Some parts of the book remain controversial, and they're likely to generate a lot of heat. That will be fun to watch, but it won't be all that useful.

But I hope for more outside views. I've found that people outside the academic environment can be very helpful and insightful. Eric von Hippel [professor and head of the Innovation and Entrepreneurship Group at the MIT Sloan School of Management] talks about user-supplied innovation. That's the insight I'm trying to exploit here.

In-Theatre Anti-Piracy LEDs

Yesterday Permlight Products announced the introduction of a new LED system aimend at stopping movie piracy in theaters:

The Permlight Products Enbryten Piracy line of Anti-Piracy products uses OSRAM's recently introduced thin film infrared power LED technology to transmit a safe, harmless and human invisible signal into movie audiences to wash out any silicon CCD based digital camcorders. The line of proprietary and patent pending anti-piracy technology uses a randomly generated pulsing algorithm that powers up to one hundred OSRAM Infrared Dragon LEDs using the new thin film technology. The Enbryten Piracy system does not affect infrared based video surveillance or hearing impaired audio systems. [...] Each system consists of multiple nodes which use their own randomly generated signal so that each and every system is unique and different making it impossible for pirates to thwart.

You're Downloading Al-Qaeda!

Furdlog points to a string of raids here in Holland during which the police uncovered 140,000 pirated Bollywood CDs and DVDs. That is really pirated, as in commercial counterfeiting, not copyright infringement at best. To put some background to the real piracy, this press release offers some February figures on what's popular to pirate, which brands are targeted, where piracy activity takes place etc:

Intellectual property theft (brands, trademarks and copyrights) surged to 36% of global counterfeiting during the month of February. More than 95% of all counterfeit items seized by customs, law enforcement and brand enforcement agents related to IP theft, accounting for $55 Million USD.

Note in the full text that the words terrorists and criminalsare used interchangeable and frequently for the pirates. The sad thing is that this same interconnection has been suggested for file-sharing. Whether you think that activity is a copyright infringement or legitimate private copying, the equation of these "private pirates" with "commercial pirates" and thus with terrorists and criminals, brings a massive criminalisation of a large segment of the population. You're a criminal for sharing! Your downloads support Al-Qaeda!

Many people may not see, or want to see, the legal (and political) differences in what tends to be morphed into the single term piracy. But while people are accused of lacking the ethics to comply with the law, to suggest a relation with terrorists and criminals may be called unethical in itself. File-sharers may be indifferent to the subtleties of copyright law, but the content industry should not be indifferent to these subtleties if it not wants to estrange its customers, as it does.